Family’s suit targets cops’ handling of emotionally disturbed

In the wee hours of the morning on May 18, 2001, a sheriff’s deputy responded to a 911 call about a naked man screaming and chasing cars near the Oak Grove Baptist Church on Kivett Drive in High Point. Within two minutes of arriving on the scene, Deputy Thomas Gordy suffered two gunshot wounds to his left leg and fatally shot 22-year-old High Point resident Gil Barber.

An investigation by the Guilford County Sheriff’s Department cleared Gordy of any wrongdoing in the man’s death, an opinion seconded by a district attorney’s review of the evidence. But now a civil suit lodged by Barber’s family against the department and Gordy seeks to address whether a bungled response to the situation contributed to Barber’s death. The suit also alleges that the sheriff’s department violated the 14th Amendment promise of equal protection in the killing of the unarmed black man.

Chapel Hill-based civil rights lawyer Alan McSurely is representing Jessie Barber and Butch Stewart, Gil Barber’s parents. He is basing his case in part on research documenting police response to emotionally disturbed persons. McSurely filed an amended complaint on March 28 to the US District Court for the Middle District of North Carolina, and is currently taking depositions and collecting evidence. The case is set for trial in July 2006.

Barber had crashed his car near the church sometime before the confrontation with Gordy. Stewart contends that the resulting injuries caused severe emotional distress ‘— a factor that should have caused Gordy to alter his approach at the scene. Albright’s statement exonerating the deputy depicts a split-second decision made during a life-or-death struggle that defies retrospection.

‘“The conduct of the deputy must be judged, not from 20/20 hindsight on golden scales in an atmosphere of calm,’” Albright said, ‘“but from the circumstances as they appeared to him at that turbulent moment when his life hung in the balance in the semi-darkness at the scene.’”

In his apartment, crammed with the clothes and trinkets he sells at local flea markets, Stewart pulled out a three-inch binder filled with pictures, articles and documents about Gil Barber. Since their son’s death more than four years ago, Stewart and Jessie Barber have been on an outspoken crusade to hold the sheriff’s department accountable ‘— a campaign that has landed the duo in court on the other side of a civil suit.

Gordy sued Stewart and Jessie Barber for defamation and intentional infliction of emotional distress after the pair called him a murderer at a rally. The group mediated a settlement that required Jessie Barber and Stewart to confine their criticisms to the public agencies and their leaders, not Gordy, who had been cleared of criminal wrongdoing. Later, on the day of the settlement, Jessie Barber and Stewart called a press conference in front of the Guilford County Courthouse.

‘“Psycho! I lied,’” Jessie Barber said according to court documents. ‘“I will not honor it.’”

Stewart called Gordy an ‘“assassin,’” ‘“executioner’” and ‘“butcher’” at the same event. A lower court slapped a fine on Jessie Barber and Stewart for breaching the agreement, but the North Carolina Court of Appeals overturned the punishment on legal grounds. The court upheld the section of the agreement barring the two from calling Gordy a murderer, which they had challenged on the grounds that it contradicted their constitutional right to free speech.

The experience has done little to curb the rhetoric employed by Barber’s family. But Stewart contends that many questions regarding the case remain unanswered by the official account of what occurred in the two minutes between Gordy’s arrival at the scene and the moment when he shot Gil Barber. Sitting in front of his computer, Stewart spoke softly about his son.

‘“He was the kind of person who anybody who would meet him, they would like him,’” Stewart said. ‘“He had a way of charming himself out of everything he could get into.’”

Neither the sheriff’s department incident report nor Albright’s statement mentions the car accident preceding the shooting. Both reports mention that Gil Barber broke into the church and desecrated the property. Although he was shot in the chest, a photograph taken by Stewart after the autopsy clearly showed a dark, softball-sized bruise on his forehead, five missing teeth and several large patches of hair torn from his scalp.

‘“Anybody with any common sense would know it wouldn’t happen the way they said it did,’” Stewart said.

Officials hypothesize that Gil Barber lost both his hair and his clothes when he got tangled up in barbed wire after the car accident. Barber allegedly lost his teeth inside the church when he bit into a metal collection plate and pulled them out.

Stewart said a beating or the initial car accident would be more likely to cause those kinds of injuries. Sheriff BJ Barnes has maintained since the day of the shooting that Gil Barber was under the influence of cocaine or another stimulant, of which the third toxicology report ordered by the state found trace evidence.

No one has testified publicly as to what happened before Gordy appeared at the scene. But once he arrived, Gil Barber violently confronted the deputy, according to Albright’s statement. Efforts to subdue him with pepper spray failed, and a struggle for the officer’s gun ensued. Gordy received two gunshot wounds to his left calf before he fired the fatal shot at Gil Barber.

Albright vindicated Gordy based in part on the physical evidence of a close struggle that, had he not fired the fatal shot, might have ended with the deputy’s death. The gist of McSurely’s legal argument is that Gordy precipitated the struggle by confronting Gil Barber in an inappropriate manner.

Courts have not always been receptive to this argument, according to Mike Avery, a law professor and president of the National Lawyers Guild. In an article published in the Columbia Human Rights Law Review in 2003, he argued that because victims’ actions leading up to the use of deadly force are factored into lawsuits, so should those of law enforcement officers.

‘“The officers can frequently make the argument that a person poses a immediate threat in the thirty seconds before a shooting,’” Avery said. ‘“That’s like saying, ‘What can you do about a fire once its already started?””

In his article, he reviews police experts’ recommendations for handling encounters with emotionally disturbed subjects.

Among those recommendations is to assign two officers to such calls and have one approach quietly and move slowly to defuse the situation while the other provides cover. The article cites evidence that loud commands and pepper spray often agitate such subjects.

Avery’s article challenges the common defense that officers must make split-second decisions to employ lethal force.

‘“Virtually all of the police training available counsels officers to develop a plan prior to confronting a subject, to take their time and proceed cautiously and slowly in attempting to resolve a situation, to remain calm, to remain at a safe distance from a subject, and to avoid actions which might unnecessarily frighten or excite a subject,’” he wrote. Gordy violated all of those recommendations by responding solo, turning on his flashing lights, shouting commands at the deceased and using pepper spray, according to the complaint.

In addition, allegations in the complaint filed by McSurely maintain that Gordy’s Glock 21 jammed between the first set of shots. The deputy had time to clear the casing, reload a new magazine and call on his radio to announce he’d been hit before he fired the last three shots, one of which killed Gil Barber.

Accepted training practices for dealing with emotionally disturbed persons have been available for police officers since 1954. In 1994 an emotionally disturbed black man, Daryl Howerton, was killed by a Greensboro Police officer, which should have put all area law enforcement officers on notice, the complaint alleges. Apparent shortcomings in officer training points to shared liability by the Guilford County Sheriff’s Department, McSurely said.

The sheriff’s office has not yet responded to requests from YES! Weekly for policy manuals related to emotionally disturbed subjects. Confidentiality laws dictate that the evidence and results of their internal investigation remain sealed.

Local activists involved with the national Coalition to Stop Police Brutality on Oct. 22 befriended Gil Barber’s family soon after the shooting. Tim Hopkins attended a press conference arranged by Sheriff Barnes before the department had even notified the family of Gil Barber’s death. During a heated exchange between Hopkins and Barnes, the sheriff blew up, Hopkins said.

‘“Barnes said, ‘If you say one more thing, I’ll have you arrested,”” Hopkins said.

Barnes also cited Gil Barber’s criminal record and described him as a ‘“raging bull,’” a portrayal Hopkins said was intended to reinforce negative racial stereotypes. Records from the Guilford County Clerk of Court revealed convictions for possession of a stolen motor vehicle, conspiring to sell marijuana and resisting arrest.

Hopkins and other supporters held a fundraiser to generate money for expert witnesses like Lou Reiter, a consultant and 20-year veteran of the Los Angeles Police Department. Reiter charges $7,500 for his testimony. The Gil Barber Justice Fund, based at the Beloved Community Center, has raised $2,500.

‘“We hope to really turn out a lot of people at the courthouse,’” said Nego Crosson, an activist with the October 22nd Coalition. ‘“This is an awareness-raising tool for people to become cognizant of racism in our society. We hope that the ruling will have an impact on how police are trained and save lives in the future.’”

More than four years later, little remains at the site of the shooting to remind neighbors what happened early on that May 2001 morning. The barbed wire has been removed; nothing remains of the car wreck that halted Gil Barber on his way back home and damage to the Oak Grove Baptist Church has been repaired. If the civil case makes it to trial, it might expose some of the lingering mysteries from the brief pre-dawn encounter that left such lasting consequences.

‘“The essential thing is why did this cop in less than two minutes kill a guy who was obviously unarmed,’” McSurely said. ‘“But around that the story is like a Russian novel.’”